The eritrea-yemen arbitration: First stage—The law of title to territory re-averred

International and Comparative Law Quarterly

Volumn 48, Issue 2, 1999, Pages 362-386

  Antunes, Nuno Sérgio Marques ^a  

^a Portuguese Navy   (Portugal)

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EID: 84962572773     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300063235     Document Type: Article

References (79)

1. For a brief overview of the dispute, see Daniel Dzurek, “Eritrea-Yemen Dispute Over the Hanish Islands” (19%) 4 1BRU Boundary and Security Bull. 70. The article has attached a table entitled “Southern Red Sea Islands”, including data relative to geographical co-ordinates and area of some of the islands.
2. “The critical date is a concept linked to the admissibility and weight of evidence” (Ian Brownlie, The Rule of Law in International Affairs (1998), p.152
3. see also his Principles of Public International Law (5th edn, 1998), pp.128–129).
4. R. Y. Jennings, The Acquisition of Territory in International Law (1967), p 34.
5. The Tribunal referred to it as a “somewhat technical ‘critical date’ argument” (para.87 of the award). Fitzmaurice defines the critical date as “the date after which the actions of the parties can no longer affect the issue”, and considers that it is an issue that cannot “be separated from the facts and the merits of the case”. The “date on which legal proceedings are commenced” constitutes in his view a final and logical time-limit for the claims of the parties (Gerald Fitzmaurice, “The Law and the Procedure of the International Court of Justice, 1951–4: Points of Substantive Law. Part II” (1955–1956) 32 B.Y.LL. 20, 20, 26).
6. The question of the critical date had already been elaborated on in the jurisprudence particularly in the Island of Palmas arbitration (arbitral award of 4 Apr. 1928, Jennings, idem, pp.97, 123), in the Eastern Greenland case (judgment of 5 Apr. 1933 (1932–1935) III World Court Reports 148,170)
7. and in the Minquiers and Ecrehos case (judgment of 21 Mar. 1953,1.CJ. Rep. 1953,47, 51, 58–60).
8. Idem, para.95.
9. At this stage the Tribunal cited the award rendered in the Palena arbitration of 1966 (Argentina-Chile Frontier Case, arbitral award of 9 Dec. 1966 (1969) 38 I.L.R. 16,80). However, in the Palena arbitration the situation was quite different in so far as both parties had made extensive reference to the question of the critical date “as a means of shutting out evidence of its opponent's activities” (p.79).
10. Fitzmaurice, I.L.R., at p.24
11. citing the pleadings in the Minquiers and Ecrehos case (I.CJ. Pleadings 1953, Vol.11, pp.67–70).
12. Idem, para.19. This is a reference to Art.16 of the Treaty of Lausanne, the relevant part of which is cited in idem, para.157. The Treaty of Peace of Sèvres, of 1920, in which Turkey renounced its territorial rights in favour of the Principal Allied Powers, was never ratified by Turkey and, therefore, never entered into force.
13. Idem, para.25.
14. Para.23 of the award. See Marjorie Whiteman (1968) 10 Digest of International Law 546–550
15. Jennings, Digest of International Law, at pp.52–53
16. D. P. O'Connell, International Law (2nd edn, 1970), pp.432–433
17. Georg Ress, “Germany, Legal Status after World War II”, in Rudolf Bernhardt, Encyclopedia of Public International Law, Vol.2. (1995), pp.567–568
18. Rudolf L. Bindschedler, “Annexation”, in Bernhardt, idem, Vol.1, pp.168–172
19. Karl-Ulrich Meyn, “Debellatio”, in Bernhardt, idem, Vol.1, pp.969–971
20. Michael Bothe, “Occupation, Belligerent”, in Rudolf Bernhardt, Encyclopedia of Public International Law, Instalment 4 (1982),pp.64–67.
21. Idem, paras.121,122,143,146,148.
22. Idem, paras.154,159,162,165,167,168 (emphasis added).
23. Idem, paras.169–186.
24. T. O. Elias, “The Doctrine of Intertemporal Law” (1980) 74 AJ.I.L. 285. Paras.125,144,148,165,441–444 of the award.
25. Brownlie, Principles, AJ.I.L., at p.671.
26. Idem, pp. 109–110.
27. Idem, paras.447,449.
28. I.CJ. Rep. 1953, 47, 57.
29. This perspective was endorsed in the Western Sahara Advisory Opinion (I.CJ. Rep. 1975,4,43).
30. I.CJ. Rep. 1953,47, 53–57, 60–67.
31. I.CJ. Rep. 1975, 4, 40–57, 57–64,68.
32. The importance of this principle in “securing respect for the territorial boundaries at the moment when the independence is achieved” was clearly stressed in the Burkina Faso-Mali case (Case Concerning the Frontier Dispute, judgment of 22 Dec 1986, I.CJ. Rep. 1986,554,566).
33. See also the Land, Island and Maritime Frontier Dispute, 11 Sept. 1992, I.CJ. Rep. 1992,351, 386–395.
34. Case Concerning the Arbitral Award of 31 July 1989 (1990) 83 I.L.R. 8, 45, para.85. See p32, para.54, where, apropos, reference is made to the decision on the Island of Palmas arbitration.
35. See OAU Resolution of 21 July 1964, concerning boundary disputes in Africa
36. Burkina Faso-Mali case, I.L.R., at pp.565–568, 586–587
37. Rann of Kutch arbitration, Case Concerning the Indo-Pakistan Western Boundary, arbitral award of 19 Feb. 1968 (1976) 50 I.L.R. 2.
38. Brownlie, Principles, I.L.R., at p.133.
39. Malcom N. Shaw, “The Heritage of States: The Principle of Uti Possidetis Juris Today” (1996) 67 B.Y.I.L. 75, 153
40. Brownlie, idem, pp.132–133.
41. idem, at pp.565–566.
42. In this decision, the arbitrator explicitly affirmed that “an arbitral tribunal must have entire freedom to estimate the value of assertions by the parties”. And concluded asserting that “the value and weight of any assertion can only be estimated in the light of all evidence and all the assertions made on either side, and of facts which are notorious for the tribunal” (Jennings, idem, at p.95).
43. Idem, paras.93–94.
44. Case Concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area, Canada v. USA, I.CJ. Rep. 1984, 246,305–307.
45. Idem, paras.437,439.
46. Idem, para.451.
47. Idem, para.453, emphasis added.
48. Idem, paras.7, 454–455.
49. Jennings, Idem, at p.93.
50. Idem, at p.171, emphasis added.
51. Idem.
52. O'Connell, Idem, at p.413.
53. According to the Yemeni view, the principle of natural or geographical unity is a “corollary of the concept of traditional title”, operating “in conjunction with evidence of the exercise of acts of jurisdiction or manifestations of state sovereignty” (idem, para.35).
54. Eritrea denied the existence of any kind of contiguity relationship between the Arabian peninsula and the disputed islands, and had recourse to a kind of “leapfrogging” reasoning to support its own argument of contiguity. This “principle” appears to bear the same content as the argument of contiguity often put forward in territorial disputes since the 19th century (Surya P. Sharma, Territorial Acquisition, Disputes and International Law (1997), pp-51–61).
55. See the British Guiana v. Brazil arbitration of 1904 (British Foreign and State Papers, Vol.XCIX, (1905–1906), p.930)
56. which assessed the argument of contiguity in negative terms, and the Land, Island and Maritime Frontier Dispute (British Foreign and State Papers, at p.570), which admitted the existence of a situation of “singular insular unity” between the islands of Meanguera and Meanguerita.
57. D. P. O'Connell, The International Law of the Sea, Vol.1 (1982), pp.185–191.
58. Island of Palmas arbitration, Jennings, The International Law of the Sea, at pp.108–109.
59. See Munkman, The International Law of the Sea, at p.100
60. Sharma, The International Law of the Sea, at p.200.
61. D. W. Bowett, The Legal Regime of Islands in International Law (1975), pp.48–49, stressing that this presumption dates back to the 1920s.
62. See Island of Palmas arbitration, Jennings, The Legal Regime of Islands in International Law The Legal Regime of Islands in International Law n.9, at p.109.
63. This view was also followed in the Land, Island and Maritime Frontier Dispute in relation to the islands of Meanguera and Meanguerita (see The Legal Regime of Islands in International Law n.71).
64. The “northern islands” include the Zubayr Group and Jabal al-Tayr island; see the map, The Legal Regime of Islands in International Law.
65. Idem, para.472. Reference is made to the fact that this principle was “already enshrined” in Art.6 of the Treaty of Lausanne.
66. They are named Northeast Haycock, Middle Haycock and Southwest Haycock, and are about 3 nautical miles from Three Foot Rock and 6 nautical miles from Suyul Hanish (see map at the end of this article); idem, paras.476–482.
67. Paras.485–508 of the award. The islands of Jabal Zuqar, Greater Hanish, Lesser Hanish and Suyul Hanish are the main islands having areas of, respectively, 102,62,14 and 6 sq. km. (Dzurek, idem, at p.77). The Mohabbakahs and the Haycocks have negligible dimensions when compared to these main islands.
68. Idem, para.508.
69. Idem, para.491.
70. As mentioned before, this possibility has been admitted since the Island of Palmas arbitration. The example of the islands of Meanguera and Meanguerita in the Land, Island and Maritime Frontier Dispute (see Idem), where the latter was seen as a “dependency” of the former, seems to be an analogous situation.
71. Idem, para.513.
72. Sharma, Idem, at p.196.
73. A. L. W. Munkman, “Adjudication and Adjustment–International Judicial Decision and the Settlement of Territorial and Boundary Disputes” (1972–1973) 46 B.Y.l.L. 1, 99–103.
74. This author has tried to distinguish the facts provided by the parties in accordance with the following categories: evidence of actual administration; affiliations of the inhabitants (when the territory is inhabited); geographical, economic, historical, social and cultural links, general considerations of convenience. This classification is closely followed by Sharma, idem, pp.196–210.
75. O'Connell, idem, at p.413. Other authors clearly accept this approach in general terms
76. see Sharma, idem, pp.59–60,332
77. and Fitzmaurice, idem, at p.75.
78. Western Sahara Advisory Opinion, idem, at p.41.
79. Dr El-Kosheri is a jurist brought up in the Islamic culture; for his biography see ICJ Yearbook 1996–1997, pp.59–60. It has also to be noted that Sir Robert Jennings was counsel for Sharjah in the Dubai-Sharjah Border arbitration (award of 19 Oct. 1981).